Federalist No. 29

Federalist 29 addresses arguments about the supremacy of the federal government in directing the State militias. Hamilton attempts to refute the notion that the militia is the only avenue for enforcing law. He also rebuts the notion that a despot would choose a militia as a practical vehicle for achieving his aims.

Concerning the Militia

To the People of the State of New York:

THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.

It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union “to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress.“

The power of regulating the militia, and of its command in times of insurrection and invasion are required to provide for the common defense and ensure the internal peace of the Confederacy.

You don’t have to be a military expert to see that uniformity of organization and discipline are critical aspects of an effective force, especially in times of need. Organization and discipline enables a military force to deploy themselves effectively and in a coordinated manner, which is something of extreme importance in the operation of an army. Logistically, this allows a military force to start doing what they need to do faster. The only way to achieve the desired uniformity and organization is to confide the regulation of the militia to the national government. And so it is with good reason that the new Constitution proposes to empower the Union “to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress.”

Of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper.

Of all the grounds staked out for attacking the proposed Constitution, none is as untenable as the one from from which this particular provision is attacked. If a well-regulated militia is the most natural defense of a free country, then shouldn’t it be under the command and regulation of that body which is designated as the guardian of national security? If standing armies are dangerous to liberty, making the militia subordinate to the federal government should remove a major inclination towards their abuse, if the States are no longer a threat. If, when the civil authority requires the use of force, the federal government can command the efforts of the militia, it can avoid having to deploy the army. If it can’t use the militia, it will have to use the army. If we seek to avoid the maintenance of a standing army, then there is no better way than this. This will be more effective than a thousand prohibitions on paper.

In order to cast an odium upon the power of calling forth the militia to execute the laws of the Union, it has been remarked that there is nowhere any provision in the proposed Constitution for calling out the POSSE COMITATUS, to assist the magistrate in the execution of his duty, whence it has been inferred, that military force was intended to be his only auxiliary. There is a striking incoherence in the objections which have appeared, and sometimes even from the same quarter, not much calculated to inspire a very favorable opinion of the sincerity or fair dealing of their authors. The same persons who tell us in one breath, that the powers of the federal government will be despotic and unlimited, inform us in the next, that it has not authority sufficient even to call out the POSSE COMITATUS. The latter, fortunately, is as much short of the truth as the former exceeds it. It would be as absurd to doubt, that a right to pass all laws necessary and proper to execute its declared powers, would include that of requiring the assistance of the citizens to the officers who may be intrusted with the execution of those laws, as it would be to believe, that a right to enact laws necessary and proper for the imposition and collection of taxes would involve that of varying the rules of descent and of the alienation of landed property, or of abolishing the trial by jury in cases relating to it. It being therefore evident that the supposition of a want of power to require the aid of the POSSE COMITATUS is entirely destitute of color, it will follow, that the conclusion which has been drawn from it, in its application to the authority of the federal government over the militia, is as uncandid as it is illogical. What reason could there be to infer, that force was intended to be the sole instrument of authority, merely because there is a power to make use of it when necessary? What shall we think of the motives which could induce men of sense to reason in this manner? How shall we prevent a conflict between charity and conviction?

By way of calling suspicion on the prudence of having the Union’s laws enforced by the militia, some have pointed out that there is no provision in the proposed Constitution for calling out the regular citizenry (POSSE COMITATUS), to assist the magistrate in carrying out his duty. And so, it has been inferred that military force is intended to be his only avenue. These objections are so amazingly incoherent and illogical (frequently from the same source) that they don’t inspire much confidence in the sincerity or honesty of those making them. The same people who tell us in one breath that the proposed system will be despotic and unlimited, tell us in the next that it doesn’t even have enough authority to martial the citizenry under POSSE COMITATUS. The latter assertion is fortunately as much short of the truth as the former exceeds it. It is absurd to doubt that a government empowered to pass all laws necessary and proper to the execution of its declared powers, wouldn’t have a civil service to administer those laws. This would be like saying that a right to enact laws for the imposition and collection of taxes means that inheritance and landed property rights have to be changed, or that trial by jury would be abolished in such cases. A silly argument on the whole. Since it’s obvious that this argument is baseless, it follows that the conclusions drawn from it on the authority of the federal government over the militia, are as dishonest as they are illogical. How can one possibly infer that force is intended to be the sole instrument of authority, merely because the power to use force exists, if necessary. What motives could possibly induce men of sense to reason in this manner. It is difficult to give them the benefit of the doubt.

By a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen. But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse:

Through twisted logic, we are given to understand that we should fear the militia itself, in the hands of the federal government. It is said that a special force might be created, composed of the young and ardent, and that this force would be amenable to being utilized arbitrarily. It is not yet clear how the militia will be regulated by the national government, it’s too early to know. However, if I had to guess, I wouldn’t go down the twisted road of those who object to the select corps as dangerous. Instead, were I to address any member of Congress from this State on this subject, here is what I would say:

“The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

“But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.”

“Attempting to unify all the militia of the United States would be as futile as it would be harmful, even if it were possible. Professional expertise in military exercise, requires time and training. This not something that can be accomplished in a day or even a week. Getting a large body of citizens to go through such training with sufficient frequency to achieve the competency required in a well-regulated militia, would be costly and grievous to the people. It would cost the country a lot in terms of productive labor. Based on the present population, this amount would not be less than the whole cost of all the governments of all the States. To attempt this would harm labor and industry to such an extent as to be impractical and if attempted would be quickly abandoned. About the best one can reasonably expect from a militia is that they be properly armed and equipped, and in order to make sure that this is so, that they be assembled once or twice each year.

But though this idea of unifying the training of the nation’s militia must be abandoned as mischievous or impractical, it’s still very important that there be a considered plan for the proper establishment of the militia. Government should devote some part of its attention to the creation of a select corps of moderate size. This corps should be created along such lines as will make them best fit for service in case of need. By limiting its scope, such plan should make it possible to have an excellent body of well-rained militia, ready to take the field whenever the defense of the State shall require it. This will not only reduce the need for military establishments, but also protect the liberty of the people should the government form an army of any magnitude. Such an army would be offset by a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who would stand ready to defend their own rights and those of their fellow-citizens. This is the only substitute I can see for a standing army, and the best possible security against one, should it exist.”

Thus differently from the adversaries of the proposed Constitution should I reason on the same subject, deducing arguments of safety from the very sources which they represent as fraught with danger and perdition. But how the national legislature may reason on the point, is a thing which neither they nor I can foresee.

Thus would my conclusions differ from those of the adversaries of the proposed Constitution. I deduce safety from the very source from which they represent as fraught with danger and perdition. But what Congress will come up with, neither they, nor I can foresee.

There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the sole and exclusive appointment of the officers? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia.

There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia, that is difficult to know how to respond to it. Should the argument be treated seriously or merely derided? Is this a mere academic exercise in rhetoric, or is it a more sinister attempt to instill prejudices at any price? Is this evidence of political fanaticism? If we can’t trust our sons, brothers, neighbors and fellow citizens, who can we trust? What kind of danger can there be from men who we mingle with daily and with whom we share the same feelings, sentiments, habits and interests? Given that the States have the sole and exclusive power to appoint the officers of the militia, how could it possibly be threatening for the Union to command its services when necessary? If there was any danger whatsoever in the federal government’s abuse of the militia’s power, surely the fact of the State’s exclusive right to appoint its officers should eliminate it. There can be no doubt that this fact will always give the States the major influence over the militia.

In reading many of the publications against the Constitution, a man is apt to imagine that he is perusing some ill-written tale or romance, which instead of natural and agreeable images, exhibits to the mind nothing but frightful and distorted shapes —

“Gorgons, hydras, and chimeras dire”;

discoloring and disfiguring whatever it represents, and transforming everything it touches into a monster.

In reading many of the publications against the Constitution, a man is apt to imagine that he is perusing a badly written fantasy or romance. However, instead of love and pleasant things, this is a dark fantasy, filled with frightening, distorted shapes –

“Gorgons, hydras, and chimeras dire”;

discoloring and disfiguring whatever it represents, and transforming everything it touches into a monster.

A sample of this is to be observed in the exaggerated and improbable suggestions which have taken place respecting the power of calling for the services of the militia. That of New Hampshire is to be marched to Georgia, of Georgia to New Hampshire, of New York to Kentucky, and of Kentucky to Lake Champlain. Nay, the debts due to the French and Dutch are to be paid in militiamen instead of louis d’ors and ducats. At one moment there is to be a large army to lay prostrate the liberties of the people; at another moment the militia of Virginia are to be dragged from their homes five or six hundred miles, to tame the republican contumacy of Massachusetts; and that of Massachusetts is to be transported an equal distance to subdue the refractory haughtiness of the aristocratic Virginians. Do the persons who rave at this rate imagine that their art or their eloquence can impose any conceits or absurdities upon the people of America for infallible truths?

For a sample of ludicrous thinking, look at the exaggerated and improbable scenarios put forth in regard to the power of calling up the militia. The militia of New Hampshire could be marched to Georgia, and that of Georgia to New Hampshire, while that of New York would be dispatched to Kentucky, whose militia would be sent to Lake Champlain. No, actually the debts owed to the French and the Dutch are to be paid in militiamen instead of in louis d’ors and ducats. One minute they argue that a large army will eradicate the people’s liberty, and the next they have the militia of Virgina marching 5 or 6 hundred miles, to put down a revolt among those cantankerous Massachusetts republicans, while that of Massachusetts is to be sent an equal distance to settle the hash of those darn aristocratic Virginians. Do the people ranting and raving in such a manner think that they are convincing? The people of America are smarter than that.

If there should be an army to be made use of as the engine of despotism, what need of the militia? If there should be no army, whither would the militia, irritated by being called upon to undertake a distant and hopeless expedition, for the purpose of riveting the chains of slavery upon a part of their countrymen, direct their course, but to the seat of the tyrants, who had meditated so foolish as well as so wicked a project, to crush them in their imagined intrenchments of power, and to make them an example of the just vengeance of an abused and incensed people? Is this the way in which usurpers stride to dominion over a numerous and enlightened nation? Do they begin by exciting the detestation of the very instruments of their intended usurpations? Do they usually commence their career by wanton and disgustful acts of power, calculated to answer no end, but to draw upon themselves universal hatred and execration? Are suppositions of this sort the sober admonitions of discerning patriots to a discerning people? Or are they the inflammatory ravings of incendiaries or distempered enthusiasts? If we were even to suppose the national rulers actuated by the most ungovernable ambition, it is impossible to believe that they would employ such preposterous means to accomplish their designs.

If the government is going to make use of an army to enforce despotic rule, what’s the point of a militia? If there was no army, where would a militia turn its attention if called upon to undertake a distant and hopeless expedition for the purpose of enslaving a portion of their countrymen? Would they follow orders, or turn their efforts against the very tyrants who came up with such a foolish plan? They would do the latter, making them an example of the just vengeance of an abused and incensed people. Is this the way usurpers would try to dominate a numerous and enlightened nation? Would they try to accomplish their ends by aggravating the very instruments of their designs. Do those seeking power usually start their career by indulging in wanton and disgusting abuses of power, which serve no purpose other than to make them universally reviled? Are such imaginings the sober reflections of discerning patriots to a discerning people? Or are they simply the ravings of lunatics and fanatics? Even if we were to suppose that those in power at the national level were motivated by unquenchable ambition, it’s impossible to believe that they would go about achieving their goals in such a manner.

In times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition. This was frequently the case, in respect to the first object, in the course of the late war; and this mutual succor is, indeed, a principal end of our political association. If the power of affording it be placed under the direction of the Union, there will be no danger of a supine and listless inattention to the dangers of a neighbor, till its near approach had superadded the incitements of self-preservation to the too feeble impulses of duty and sympathy.

It is reasonable to suppose that in times of insurrection or invasion, the militia of a neighboring State might be marched into another to resist a common enemy, or to guard the republic against the violence of faction or sedition. During the Revolution, this was often the case. In fact this mutual assistance is the biggest reason for union. If the power of providing this is to be placed under the direction of the Union, then we needn’t fear letting the dangers faced by a neighbor being unaddressed, until the danger is too close and requires the added impetus of self-preservation for action.

PUBLIUS

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